Copyright, Newzbin’s Ghost and the Fruits of Infringement

February 7, 2013

In his judgment in Twentieth Century Fox Film Corp & Ors v Harris & Ors [2013] EWHC 159 (Ch), Mr Justice Newey has rejected claims for proprietary injunctions, stating ‘it seems to me clear that a copyright owner does not have a proprietary claim to the fruits of an infringement of copyright’. 

The case concerned a claim by various major film studios. They alleged that the defendants held property which was the proceeds of breach of copyright in their films and that an effective trust applied. The owners of the property in question, which included most strikingly a McLaren car standing on defendant David Harris’s driveway, resisted the application on the basis that the claimant studios were arguing for a remedy that has never been awarded by any court in respect of any species of intellectual property; whereas the owner of intellectual property whose rights have been infringed will often be entitled to an account of profits, no question of the fruits of infringement being subject to a trust had previously been raised. 

By way of background, it should be said that it was alleged that the property in question was the fruit of profits from Newzbin2 and associated file-sharing activity. 

The judgment includes a wide-ranging discussion of the nature of copyright infringement, which may be of interest in a wider context. Mr Justice Newey found the comparisons with theft unconvincing and preferred a comparison with trespass.